Don’t Judge By Appearances — Your Business is at Stake

Back Commentary Jun 23, 2016 By Frank  Radoslovich

If you walked your company right into a discrimination lawsuit that you didn’t see coming, I can’t really blame you for being shocked when you get served with papers. Just kidding, I can totally blame you.

If you find yourself a target defendant in these situations, it’s more likely that what you didn’t say or do put you in that position. I’ll let you in on a little secret about an issue with the potential to put any company under if not handled correctly: the “non-obvious disability.” I urge you to get in touch with your HR manager to discuss how your business is prepared to handle non-obvious disabilities. My own experience as a practicing attorney in California for the past 24 years has convinced me that not paying attention to this issue can become a big legal threat.

You’re thinking: What exactly is a non-obvious disability, and what should it mean to me? Simply put, it’s a disability you can’t see. We often think of a person with a disability as either using a wheelchair or a cane — something visible. But there are also non-obvious disabilities, such as peripheral neuropathy (nerve pain in the hands and feet), which may not be readily observable to the naked eye.

Not all workplace disabilities are readily apparent and thereby pose a threat to business owners who may not know how to offer employees the opportunities to safely self-disclose them. One of the most common challenges of non-obvious disabilities is that potential employees may not self-identify for fear of not obtaining the job or being treated differently if they are hired.

Commonly disclosed or visible disabilities that employers may encounter, and may be asked to provide accommodations for when hiring, include having a prosthetic limb, or loss of vision or hearing, just to name a few. But when someone who doesn’t have an apparent physical impairment claims to have a disability and requests special accommodations, fellow employees might question whether he or she has a real disability. This can further perpetuate the employee’s fear and unwillingness to disclose the disability, or worse, create an environment for perceived discrimination. These issues can put your business at risk.

Non-obvious or invisible disabilities that may not be immediately apparent can include diabetes, epilepsy and other seizure disorders, cancer, dyslexia, joint injuries or chronic illnesses, such as Lyme disease or arthritis. But, of course, the list doesn’t stop there. In California, alcoholism and attention-deficit/hyperactivity disorder (ADHD) are both disabilities that may require special accommodations for employees seeking treatment.

Related: Dilemma of The Month: Fragrance in the Work Place

While not immediately apparent, these unseen disabilities can interrupt everyday activities. Do your research and become as knowledgeable as possible on disability issues. Attend an HR seminar, study the multitude of resources available on employment law websites and use your lawyer to supplement that education. As an employer, you can never truly know for sure whether someone has an invisible disability unless it is disclosed, so you must protect yourself in every way possible.

An employee who doesn’t disclose a disability can spell trouble for you as a business owner, as you can unintentionally be discriminatory against not only your current employees but potential employees, too. When it comes to hiring, you must be responsible: Make sure you’re at least aware of how to address accommodations that may be required related to employee disability issues. Failure to treat all employees fairly and comply with laws can result in unintentional discrimination or lawsuits.

The Americans with Disabilities Act says that “a covered entity shall not discriminate against a qualified individual with a disability.” This applies to job application procedures, hiring, advancement and discharge of employees, workers compensation, job training and any other terms and conditions of employment that may not fall into these categories. Legal compensation may be brought forth by the affected employee if an employer fails to comply.

Here’s where you walk a fine line, because for those with non-obvious disabilities, disclosure is often a choice. This has implications across several human resource functions. Upon accepting a job, a person with a non-obvious disability can choose whether or not to disclose a disability. Likewise, an employee will only need to disclose a disability if requesting an accommodation. To be clear: As an employer, even if you have a suspicion, you cannot legally ask someone if they havea disability.

Businesses can protect themselves in cases like this by making sure to include a section on their job applications and hiring documents that asks the applicant if they have any impairments or disabilities that require workplace accommodations. This simple addition goes a long way in protecting you. Be sure that the documents include the Equal Opportunity Employer statement, “[Your company name] provides equal employment opportunities (EEO) to all employees and applicants for employment without regard to race, color, religion, sex, national origin, age, disability or genetics,” and so on. Also include a disclaimer indicating that by signing the document, the applicant is ensuring that all information contained in the document is truthful. (Google the exact language, if you want. Lawyers are helpful here, too.)

Remember, you are obligated to keep all the information an individual discloses about a disability confidential. You also cannot refuse to hire an individual because of his or her disability if that person can perform the essential functions of the job with or without reasonable accommodation.

Once you have hired an employee and they have started work, you cannot require that employee to take a medical examination, nor can you ask questions about their disability unless they are directly related to their ability to effectively do their job and necessary for the manner of your business. However, you are within your legal means to ask a hired employee who is requesting an accommodation to describe or to demonstrate how — with or without reasonable accommodation — they will perform the duties of the job.

Each case and business is different, but proper education on disabilities — obvious and non-obvious — makes for better workplace relations and saves you from potentially botching your business. Still have questions? Call your lawyer, before you end up getting slapped with a non-obvious disability lawsuit that will (very obviously) affect your business.

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